Electoral Commission v Mhlope and Others

• Jurisdiction: South Africa

Electoral Commission v Mhlope and Others
2016 (5) SA 1 (CC)

2016 (5) SA p1

Citation	2016 (5) SA 1 (CC)
Case No	CCT55/16; [2016] ZACC 15
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
Heard	May 9, 2016
Judgment	June 14, 2016
Counsel	W Trengove SC (with J Bleazard and N Luthuli) for the Electoral Commission (applicant.; AJH Bosman SC (with L van Gass and CJ Bosman) for the independent candidates (first to sixth respondents).; G Marcus SC (with F Hobden) for the African National Congress (eighth respondent).; Anton Katz SC (with K Pillay) for the Democratic Alliance (ninth respondent).; M Sikhakhane SC (with A Hassim and B Lekokotla) for the Minister of Co-operative Governance and Traditional Affairs (twelfth respondent).; KJ Kemp SC (with S Pudifin-Jones and I Veerasamy) for the Inkatha Freedom Party (fourteenth respondent).; BR Tokota SC (with T Lupuwana) for the National House of Traditional Leaders (fifteenth respondent).; No appearance for the other respondents.

Flynote : Sleutelwoorde B

Election law — Electoral Commission — Duties — Compilation of national voters' roll — Commission must record all reasonably ascertainable voters' addresses — Though current address-deficient roll unlawfully compiled, C order of invalidity suspended until 30 June 2018 to allow August 2016 municipal elections to proceed — Commission ordered to obtain, during period of suspension, all reasonably available addresses of voters registered from 17 December 2003 — Electoral Act 73 of 1998, s 16(3).

Election law — Electoral Commission — Duties — Compilation of national voters' roll — Electoral Act providing voters' roll must include voters' addresses D 'where . . . available' — 'Available' meaning objectively available or ascertainable addresses of voters registered after 17 December 2003 — Electoral Act 73 of 1998, s 16(3).

Headnote : Kopnota

The present judgment had its origins in the Kham judgment, [*] in which the E Constitutional Court set aside the municipal by-elections held in the Tlokwe Municipality in December 2013. The court ordered the Electoral Commission (the IEC) to ensure in future municipal elections (i) that voters were registered in the correct districts and (ii) that the voters' roll complied with s 16(3) of the Electoral Act 73 of 1998 by reflecting voters' addresses, where available. Section 16(3) was introduced into the Act on 17 December 2003, F and provided that —

'the chief electoral officer must . . . provide copies of the voters' roll, or a segment thereof, which includes the addresses of voters, where such

2016 (5) SA p2

A addresses are available, to all registered political parties contesting the elections'.

The Tlokwe elections were rescheduled for February 2016, but when candidates realised that 4160 addresses were still missing from the roll, they successfully petitioned the Electoral Court for a further postponement. The IEC argued (i) that the order in Kham was purely prospective in the sense that it was only obliged to provide the addresses of voters who had registered or B reregistered after 30 November 2015; and (ii) that addresses it failed to record were not 'available' and hence did not have to be provided under s 16(3). Both arguments were rejected by the Electoral Court.

The IEC applied for leave to appeal to the Constitutional Court. While the crisp issue concerned its obligation to provide the 4160 addresses missing from C the Tlokwe segment, the wider, more pressing issue [†] was its obligation in respect of the 12,2 million addresses it admitted were missing from the national roll, and the appropriate remedy for failure to comply. Ancillary issues were the meaning of 'available' in s 16(3) and whether s 16(3) operated retrospectively. The Constitutional Court produced three judgments: a first judgment, a majority judgment, and a minority judgment.

D Held per Mogoeng CJ for the majority

Unlawfulness: 'Available' addresses meant addresses that were objectively or reasonably available, not those the IEC happened to have recorded (see ([105]). While the introduction of s 16(3) in December 2003 obliged the IEC thenceforth to record all reasonably available addresses, neither it nor the Kham judgment obliged the IEC to go back to record or correct the E addresses of pre-December 2003 voters (see [109] – [115]). But the IEC's post-December 2003 failure to record voters' ascertainable addresses was unlawful under s 16(3), contrary to the rule of law, and invalid (see [122] – [124]).

Proper remedy: Since an election held on a voters' roll that lacked addresses was not in principle unfree or unfair (see [125]), and since it was impossible F for the IEC to update the voters' roll in time for the upcoming August 2016 municipal elections (see [126]), the court would invoke s 172(1)(b) of the Constitution to suspend for two years the invalidation of the IEC's unlawful conduct, which would be condoned (see [127] – [134]). And the IEC's duty to comply with s 16(3) would itself be suspended for purposes of the August 2016 elections (see [134]). Such an order would allow those G elections to proceed despite the defective voters' roll and give the IEC time to capture the reasonably available addresses of post-December 2003 voters (see [134]). The suspension would not apply to the Tlokwe by-elections, for which the IEC had to comply with the order in Kham (see [118] – [121]). So ordered. Appeal dismissed.

Held in other judgments

H In the first judgment Madlanga J found that s 16(3) should apply also to pre-December 2003 registrations and that the Electoral Commission was therefore obliged to obtain all available addresses by 30 June 2018 (see [20] – [21], [102]). He also found that the IEC's failure to record all available addresses was inconsistent with its obligations under s 190 of the Constitution and invalid for that reason (see [91], [102]).

I In the minority judgment Jafta J found that 'available' in s 16(3) should be interpreted to mean 'in the possession of the IEC' (see [200]). He also found that s 172(1)(b) should not be construed to give the courts the power to suspend a constitutionally compliant Act of Parliament (see [187] – [190]).

2016 (5) SA p3

Cases Considered

Annotations A

Case law

AParty and Another v Minister of Home Affairs and Others; Moloko and Others v Minister for Home Affairs and Another 2009 (3) SA 649 (CC) (2009 (6) BCLR 611; [2009] ZACC 4): referred to

August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) B (1999 (4) BCLR 363; [1999] ZACC 3): referred to

Berkowitz v Berkowitz 1956 (3) SA 522 (SR): referred to

Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415; [1998] ZACC 3): referred to

Chevron SA (Pty) Ltd v Wilson t/a Wilson's Transport and Others 2015 (10) BCLR 1158 (CC) ([2015] ZACC 15): referred to C

Curtis v Johannesburg Municipality 1906 TS 308: referred to

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): dictum in para [25] applied

Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC) D (2016 (5) BCLR 618; [2016] ZACC 11): dicta in paras [18] and [43] applied

Eke v Parsons 2016 (3) SA 37 (CC) (2015 (11) BCLR 1319; [2015] ZACC 30): referred to

Ex parte Women's Legal Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288 (CC) (2001 (8) BCLR 765; [2001] ZACC 2): referred to E

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17): referred to

Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others 2013 (2) SA 204 (SCA) ([2012] ZASCA 49): referred to F

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A): referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): referred to

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) (2007 (3) BCLR 219; [2006] ZACC 24) referred to G

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169; [2000] ZACC 19): referred to

Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32): referred to H

International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) (2010 (5) BCLR 457; [2010] ZACC 6): dictum in para [39] applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others I 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): referred to

Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC) (2010 (9) BCLR 859; [2010] ZACC 11): referred to J

2016 (5) SA p4

Kham and Others v Electoral Commission and Another 2016 (2) SA 338 (CC) (2016 (2) BCLR 157; [2015] ZACC 37): discussed and applied A

Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) (2005 (2) BCLR 129; [2004] ZACC 8): referred to

Mahomed v Nagdee 1952 (1) SA 410 (A): referred to

Mazibuko NO v Sisulu and Others NNO 2013 (6) SA 249 (CC) (2013 (11) BCLR 1297; B [2013] ZACC 28): referred to

Mhlophe and Others v Independent Electoral Commission of South Africa and Others [2016] ZAEC 1: order in varied

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